Citation Nr: 1001199
Decision Date: 01/08/10 Archive Date: 01/15/10
DOCKET NO. 06-09 502 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased rating for status post left ankle
fracture, with post traumatic arthritis (left ankle
disability), current rated 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1972 to July
1974.
This appeal comes before the Board of Veterans' Appeals
(Board) from a February 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico.
The appeal is REMANDED to the RO via the Appeals Management
Center in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
In June 2006, the Veteran submitted a statement asking that
VA use his VA treatment records to make a decision, since he
was having difficulty collecting private records. It does
not appear that any attempt has been made to assist the
Veteran in procuring these private records. Furthermore, his
request that VA use his VA treatment records to make a
decision suggests that he is currently receiving care from
VA, but the most current VA records in the claims file are
from April 2006.
Regulations provide that efforts must be made to secure all
private medical records and VA records that may exist related
to the Veteran's claim. 38 C.F.R. § 3.159(c)(1) defines
reasonable efforts in obtaining records outside the custody
of the federal government as "n initial request for the
records, and, if the records are not received, at least one
follow-up request." As for federal records, 38 U.S.C.A. §
5103A(b)(3) requires that VA continue any attempts to get
federal records "until the records are obtained unless it is
reasonably certain that such records do not exist or that
further efforts to obtain those records would be futile."
Remand is necessary to afford the Veteran the opportunity to
have VA assist in obtaining private records and in order for
VA to obtain current and complete VA treatment records.
The Board also notes that the last VA examination of the
Veteran's left ankle was performed in February 2005, almost
five years ago. The Board is concerned that this examination
may no longer provide an accurate picture of the current
degree of severity of his left ankle fracture residuals.
Therefore, another VA examination is needed to fairly decide
the merits of the claim. See 38 C.F.R. § 3.159(c)(4) (2009);
see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Veteran must also be advised of the importance of
reporting to the scheduled VA examination and of the possible
adverse consequences, to include the denial of his claim, for
failing to so report. See 38 C.F.R. § 3.655 (2009).
Accordingly, the case is REMANDED for the following action:
1. Additional VCAA notice must be
provided to the Veteran, including a
description of the provisions of the
VCAA, notice of the evidence required
to substantiate the claim, and notice
of the Veteran's responsibilities and
VA's responsibilities in developing the
evidence, including what evidence the
Veteran is responsible to obtain and
what evidence VA will obtain.
This notice should advice the Veteran
that VA will attempt to obtain any
private medical records related to his
claim, provided the Veteran provide a
release and the contact information for
any private providers.
2. If the Veteran responds with
releases and contact information for
private providers, obtain the Veteran's
current and complete private treatment
records. Evidence of attempts to
obtain these records should be
associated with the claims file. Do
not associate duplicate records with
the claims file.
3. Obtain the Veteran's current and
complete VA treatment records.
Evidence of attempts to obtain these
records should be associated with the
claims file. Do not associate
duplicate records with the claims file.
4. Afford the Veteran a complete VA
orthopedic examination of his left
ankle. The claims folder must be made
available to the examiner to review in
conjunction with the examination, and
such review must be noted in the
examination report. All appropriate
tests deemed necessary should be
accomplished. The examiner must
provide comprehensive reports including
complete rationales for all conclusions
made. The examiner should fully
describe the degree of limitation of
motion of the joint or joints affected
by the degenerative changes. Any
limitation of motion must be
objectively confirmed by clinical
findings such as swelling, muscle
spasm, or satisfactory evidence of
painful motion. Complete range of
motion studies should be performed to
accurately ascertain the amount of
limitation of motion present in the
left ankle. The inability to perform
the normal working movements of the
body with normal excursion, strength,
speed, coordination and endurance
should be described, and the degree of
functional loss due to pain should also
be indicated. 38 C.F.R. § 4.40 (2009).
It should be indicated whether there is
more or less movement than normal,
weakened movement, excess fatigability,
incoordination, pain on movement,
swelling, deformity or atrophy of
disuse. 38 C.F.R. § 4.45 (2009).
5. After completing the above action,
the claim should be readjudicated. If
the claim remains denied, a supplemental
statement of the case should be provided
to the Veteran and his representative.
After the Veteran and his representative
have had an adequate opportunity to
respond, the appeal should be returned
to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
L.M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).